EXHIBIT 3.22
AMENDED AND RESTATED
BY-LAWS
OF
FULTON LAND AND TIMBER COMPANY
________________
(a Pennsylvania Corporation)
ARTICLE I
OFFICES AND FISCAL YEAR
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Section 1.01 Registered Office. The registered office of the corporation
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in the Commonwealth of Pennsylvania shall be as stated in the Articles of
Incorporation (the "articles") or at such other location to which the registered
office shall be changed by action of the board of directors.
Section 1.02 Other Offices. The corporation may also have offices at such
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other places within or without the Commonwealth of Pennsylvania as the board of
directors may from time to time appoint or the business of the corporation may
require.
Section 1.03 Fiscal Year. The fiscal year of the corporation shall end on
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the Saturday in December or January that is closest to December 31 in each year
unless otherwise fixed by the board of directors.
ARTICLE II
NOTICE--WAIVERS--MEETINGS GENERALLY
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Section 2.01 Manner of Giving Notice. (a) General Rule. Whenever
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written notice is required to be given to any person under the provisions of the
Business Corporation Law or by the articles or these bylaws, it may be given to
the person either personally or by sending a copy thereof by first class or
express mail, postage prepaid, or by telegram (with messenger service
specified), telex or TWX (with answerback received) or courier service, charges
prepaid, or by facsimile transmission to the address (or to the telex, TWX,
facsimile or telephone number) of the person appearing on the books of the
corporation or, in the case of directors, supplied by the director to the
corporation for the purpose of notice. If the notice is sent by mail, telegraph
or courier service, it shall be deemed to have been given to the person entitled
thereto when deposited in the United States mail or with a telegraph office or
courier service for delivery to that person or, in the case of telex or TWX,
when dispatched or, in the case of facsimile transmission when received. A
notice of meeting shall specify the place, day and hour of the meeting and any
other information required by any other provision of the Business Corporation
Law, the articles or these bylaws.
(b) Adjourned Shareholder Meetings. When a meeting of shareholders is
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adjourned, it shall not be necessary to give any notice of the adjourned meeting
or of the business
to be transacted at an adjourned meeting, other than by announcement at the
meeting at which the adjournment is taken, unless the board fixes a new record
date for the adjourned meeting in which event notice shall be given in
accordance with Section 2.03.
Section 2.02 Notice of Meetings of Board of Directors. Notice of a
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regular meeting of the board of directors need not be given. Notice of every
special meeting of the board of directors shall be given to each director by
telephone or in writing at least 24 hours (in the case of notice by telephone,
telex, TWX or facsimile transmission) or 48 hours (in the case of notice by
telegraph, courier service or express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
board need be specified in a notice of the meeting.
Section 2.03 Notice of Meetings of Shareholders. (a) General Rule.
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Written notice of every meeting of the shareholders shall be given by, or at the
direction of, the secretary or other authorized person to each shareholder of
record entitled to vote at the meeting at least (1) ten days prior to the day
named for a meeting (and, in case of a meeting called to consider a merger,
consolidation, share exchange or division, to each shareholder of record not
entitled to vote at the meeting) called to consider a fundamental change under
15 Pa.C.S. Chapter 19 or (2) five days prior to the day named for the meeting in
any other case. If the secretary neglects or refuses to give notice of a
meeting, the person or persons calling the meeting may do so. In the case of a
special meeting of shareholders, the notice shall specify the general nature of
the business to be transacted.
(b) Notice of Action by Shareholders an Bylaws. In the case of a
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meeting of shareholders that has as one of its purposes action on the bylaws,
written notice shall be given to each shareholder that the purpose, or one of
the purposes, of the meeting is to consider the adoption, amendment or repeal of
the bylaws. There shall be included in, or enclosed with, the notice a copy of
the proposed amendment or a summary of the changes to be effected thereby.
Section 2.04 Waiver of Notice. (a) Written Waiver. Whenever any written
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notice is required to be given under the provisions of the Business Corporation
Law, the articles or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to the notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of the notice. Except
as provided in the next sentence, neither the business to be transacted at, nor
the purpose of, a meeting need be specified in the waiver of notice of the
meeting. In the case of a special meeting of shareholders, the waiver of notice
shall specify the general nature of the business to be transacted at such
meeting.
(b) Waiver by Attendance. Attendance of a person at any meeting
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shall constitute a waiver of notice of the meeting except where a person attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting was not lawfully called
or convened.
Section 2.05 Modification of Proposal Contained in Notice. Whenever the
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language of a proposed resolution is included in a written notice of a meeting
required to be given under the provisions of the Business Corporation Law or the
articles or these bylaws, the meeting
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considering the resolution may without further notice adopt it with such
clarifying or other amendments as do not enlarge its original purpose.
Section 2.06 Exception to Requirement of Notice. (a) General Rule.
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Whenever any notice or communication is required to be given to any person under
the provisions of the Business Corporation Law or by the articles or these
bylaws or by the terms of any agreement or other instrument or as a condition
precedent to taking any corporate action and communication with that person is
then unlawful, the giving of the notice or communication to that person shall
not be required.
(b) Shareholders Without Forwarding Addresses. Notice or other
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communications need not be sent to any shareholder with whom the corporation has
been unable to communicate for more than 24 consecutive months because
communications to the shareholder are returned unclaimed or the shareholder has
otherwise failed to provide the corporation with a current address. Whenever the
shareholder provides the corporation with a current address, the corporation
shall commence sending notices and other communications to the shareholder in
the same manner as to other shareholders.
Section 2.07 Use of Conference Telephone and Similar Equipment. Any
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director may participate in any meeting of the board of directors, and the board
of directors may provide by resolution with respect to a specific meeting or
with respect to a class of meetings that one or more persons may participate in
a meeting of the shareholders of the corporation by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at the meeting.
ARTICLE III
SHAREHOLDERS
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Section 3.01 Place of Meeting. All meetings of the shareholders of the
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corporation shall be held at the registered office of the corporation or such
other place as may be designated by the board of directors in the notice of a
meeting.
Section 3.02 Annual Meeting. The board of directors may fix and designate
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the date and time of the annual meeting of the shareholders, but if no such date
and time is fixed and designated by the board, the meeting for any calendar year
shall be held on the second Monday of May in such year, if not a legal holiday
under the laws of Pennsylvania, and, if a legal holiday, then on the next
succeeding business day, not a Saturday, at 10:00 o'clock A.M., and at said
meeting the shareholders then entitled to vote shall elect directors and shall
transact such other business as may properly be brought before the meeting. If
the annual meeting shall not have been called and held within six months after
the designated time, any shareholder may call the meeting at any time
thereafter.
Section 3.03 Special Meetings. (a) Call of Special Meetings. Special
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meetings of the shareholders may be called at any time:
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(1) by the chairman of the board;
(2) by the board of directors; or
(3) unless otherwise provided in the articles, by shareholders
entitled to cast at least 20% of the votes that all shareholders are
entitled to cast at the particular meeting.
(b) Fixing of Time for Meeting. At any time, upon written request,
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of any person who has called a special meeting, it shall be the duty of the
secretary to fix the time of the meeting which shall be held not more than 60
days after the receipt of the request. If the secretary neglects or refuses to
fix the time of the meeting, the person or persons calling the meeting may do
so.
Section 3.04 Quorum and Adjournment. (a) General Rule. A meeting of
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shareholders of the corporation duly called shall not be organized for the
transaction of business unless a quorum is present. The presence of shareholders
entitled to cast at least a majority of the votes that all shareholders are
entitled to cast on a particular matter to be acted, upon at the meeting shall
constitute a quorum, for the purposes of consideration and action on the matter.
Shares of the corporation owned, directly or indirectly, by it and controlled,
directly or indirectly, by the board of directors of this corporation, as such,
shall not be counted in determining the total number of outstanding shares for
quorum purposes at any given time.
(b) Withdrawal of a Quorum. The shareholders present at a duly
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organized meeting can continue to do business until adjournment notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
(c) Adjournments Generally. Any regular or special meeting of the
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shareholders, including one at which directors are to be elected and one which
cannot be organized because a quorum has not attended may be adjourned for such
period and to such place as the shareholders present and entitled to vote shall
direct.
(d) Electing Directors at Adjourned Meeting. Those shareholders
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entitled to vote who attend a meeting called for the election of directors that
has been previously adjourned for lack of a quorum, although less than a quorum
as fixed in this section, shall nevertheless constitute a quorum for the purpose
of electing directors.
(e) Other Action in Absence of Quorum. Those shareholders entitled
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to vote who attend a meeting of shareholders that has been previously adjourned
for one or more periods aggregating at least 15 days because of an absence of a
quorum, although less than a quorum as fixed in this section, shall nevertheless
constitute a quorum for the purpose of acting upon any matter set forth in the
notice of the meeting if the notice states that those shareholders who attend
the adjourned meeting shall nevertheless constitute a quorum for the purpose of
acting upon the matter.
Section 3.05 Action by Shareholders. Except as otherwise provided in the
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Business Corporation Law or the articles or these bylaws, whenever any corporate
action is to be taken by vote of the shareholders of the corporation, it shall
be authorized by a majority of the votes cast at a duly organized meeting of
shareholders by the holders of shares entitled to vote thereon.
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Section 3.06 Organization. At every meeting of the shareholders, the
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chairman of the board, if there be one, or, in the case of vacancy in office or
absence of the chairman of the board, one of the following persons present in
the order stated: the president, the vice presidents in their order of rank and
seniority, or a person chosen by vote of the shareholders present, shall act as
chairman of the meeting. The secretary or, in the absence of the secretary, an
assistant secretary, or, in the absence of both the secretary and assistant
secretaries, a person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
Section 3.07 Voting Rights of Shareholders. Unless otherwise provided in
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the articles, every shareholder of the corporation shall be entitled to one vote
for every share standing in the name of the shareholder on the books of the
corporation.
Section 3.08 Voting and Other Action by Proxy. (a) General Rule. (1)
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Every shareholder entitled to vote at a meeting of shareholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize another person to act for the shareholder by proxy.
(2) The presence of, or vote or other action at a meeting of
shareholders, or the expression of consent or dissent to corporate action
in writing, by a proxy of a shareholder shall constitute the presence of,
or vote or action by, or written consent or dissent of, the shareholder.
(3) Where two or more proxies of a shareholder are present, the
corporation shall, unless otherwise expressly provided in the proxy, accept
as the vote of all shares represented thereby the vote cast by a majority
of them and, if a majority of the proxies cannot agree whether the shares
represented shall be voted or upon the manner of voting the shares, the
voting of the shares shall be divided equally among those persons.
(b) Minimum Requirements. Every proxy shall be executed in writing
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by the shareholder or by the duly authorized attorney-in-fact of the shareholder
and filed with the secretary of the corporation. A proxy, unless coupled with an
interest, shall be revocable at will, notwithstanding any other agreement or any
provision in the proxy to the contrary, but the revocation of a proxy shall not
be effective until written notice thereof has been given to the secretary of the
corporation. An unrevoked proxy shall not be valid after three years from the
date of its execution unless a longer time is expressly provided therein. A
proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of the
death or incapacity is given to the secretary of the corporation.
(c) Expenses. The corporation shall pay the reasonable expenses of
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solicitation of votes, proxies or consents of shareholders by or on behalf of
the board of directors or its nominees for election to the board, including
solicitation by professional proxy solicitors and otherwise.
Section 3.09 Voting by Fiduciaries and Pledgees. Shares of the
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corporation standing in the name of a trustee or other fiduciary and shares held
by an assignee for the benefit of creditors or by a receiver may be voted by the
trustee, fiduciary, assignee or receiver. A
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shareholder whose shares are pledged shall be entitled to vote the shares until
the shares have been transferred into the name of the pledgee, or a nominee of
the pledgee, but nothing in this section shall affect the validity of a proxy
given to a pledgee or nominee.
Section 3.10 Voting by Joint Holders of Shares. (a) General Rule. Where
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shares of the corporation are held jointly or as tenants in common by two or
more persons, as fiduciaries or otherwise:
(1) if only one or more of such persons is present in person or
by proxy, all of the shares standing in the names of such persons shall be
deemed to be represented for the purpose of determining a quorum and the
corporation shall accept as the vote of all the shares the vote cast by a
joint owner or a majority of them; and
(2) if the persons are equally divided upon whether the shares
held by them shall be voted or upon the manner of voting the shares, the
voting of the shares shall be divided equally among the persons without
prejudice to the rights of the joint owners or the beneficial owners
thereof among themselves.
(b) Exception. If there has been filed with the secretary of the
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corporation a copy, certified by an attorney at law to be correct, of the
relevant portions of the agreement under which the shares are held or the
instrument by which the trust or estate was created or the order of court
appointing them or of an order of court directing the voting of the shares, the
persons specified as having such voting power in the document latest in date of
operative effect so filed, and only these persons, shall be entitled to vote the
shares but only in accordance therewith.
Section 3.11 Voting by Corporations. (a) Voting by Corporate Shareholders.
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Any corporation that is a shareholder of this corporation may vote at meetings
of shareholders of this corporation, or consent or dissent to corporate action
in writing, by any of its officers or agents, or by proxy appointed by any
officer or agent, unless some other person, by resolution of the board of
directors of the other corporation or a provision of its articles or bylaws, a
copy of which resolution or provision certified to be correct by one of its
officers has been filed with the secretary of this corporation, is appointed its
general or special proxy in which case that person shall be entitled to vote the
shares.
(b) Controlled Shares. Shares of this corporation owned, directly or
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indirectly, by it and controlled, directly or indirectly, by the board of
directors of this corporation, as such, shall not be voted at any meeting and
shall not be counted in determining the total number of outstanding shares for
voting purposes at any given time.
Section 3.12 Determination of Shareholders of Record. (a) Fixing Record
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Date. The board of directors may fix a time prior to the date of any meeting of
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shareholders as a record date for the determination of the shareholders entitled
to notice of, or to vote at, the meeting, which time, except in the case of an
adjourned meeting, shall be not more than 90 days prior to the date of the
meeting of shareholders. Only shareholders of record an the date fixed shall be
so entitled notwithstanding any transfer of shares on the books of the
corporation after any record date fixed as provided in this subsection. The
board of directors may similarly fix a record date for the determination of
shareholders of record for any other purpose. When a determination of
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shareholders of record has been made as provided in this section for purposes of
a meeting, the determination shall apply to any adjournment thereof unless the
board fixes a new record date for the adjourned meeting.
(b) Determination When a Record Date is Not Fixed. If a record date
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is not fixed:
(1) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day an which notice is given or, if
notice is waived, at the close of business an the day immediately preceding
the day on which the meeting is held.
(2) The record date for determining shareholders entitled to
express consent or dissent to corporate action in writing without a
meeting, when prior action by the board of directors is not necessary,
shall be the close of business on the day on which the first written
consent or dissent is filed with the secretary of the corporation.
(3) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(c) Certification by Nominee. The board of directors may adopt a
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procedure whereby a shareholder of the corporation may certify in writing to the
corporation that all or a portion of the shares registered in the name of the
shareholder are held for the account of a specified person or persons.. Upon
receipt by the corporation of a certification complying with the procedure the
persons specified in the certification shall be deemed, for the purposes set
forth in the certification, to be the holders of record of the number of shares
specified in place of the shareholder making the certification.
Section 3.13 Voting Lists. (a) General Rule. The officer or agent having
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charge of the transfer books for shares of the corporation shall make a complete
list of the shareholders entitled to vote at any meeting of shareholders,
arranged in alphabetical order, with the address of and the number of shares
held by each. The list shall be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting for the purposes thereof.
(b) Effect of List. Failure to comply with the requirements of this
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section shall not affect the validity of any action taken at a meeting prior to
a demand at the meeting by any shareholder entitled to vote thereat to examine
the list. The original share register or transfer book, or a duplicate thereof
kept in the Commonwealth of Pennsylvania, shall be prima facie evidence as to
who are the shareholders entitled to examine the list or share register or
transfer book or to vote at any meeting of shareholders.
Section 3.14 Judges of Election. (a) Appointment. In advance of any
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meeting of shareholders of the corporation, the board of directors may appoint
judges of election, who need not be shareholders, to act at the meeting or any
adjournment thereof. If judges of election are not so appointed, the presiding
officer of the meeting may, and on the request of any shareholder
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shall, appoint judges of election at the meeting. The number of judges shall be
one or three. A person who is a candidate for an office to be filled at the
meeting shall not act as a judge.
(b) Vacancies. In case any person appointed as a judge fails to
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appear or fails or refuses to act, the vacancy may be filled by appointment made
by the board of directors in advance of the convening of the meeting or at the
meeting by the presiding officer thereof.
(c) Duties. The judges of election shall determine the number of
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shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect of
proxies, receive votes or ballots, hear and determine all challenges and
questions in any way arising in connection with nominations by shareholders or
the right to vote, count and tabulate all votes, determine the result and do
such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The judges of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
if there are three judges of election, the decision, act or certificate of a
majority shall be effective in all respects as the decision, act or certificate
of all.
(d) Report. On request of the presiding officer of the meeting or of
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any shareholder, the judges shall make a report in writing of any challenge or
question or matter determined by them, and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated therein.
Section 3.15 Consent of Shareholders in Lieu of Meeting. (a) Unanimous
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Written Consent. Any action require or permitted to be taken at a meeting of the
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shareholders or of a class of shareholders may be taken without a meeting if,
prior or subsequent to the action, a consent or consents thereto by all of the
shareholders who would be entitled to vote at a meeting for such purpose shall
be filed with the secretary of the corporation.
(b) Partial Written Consent. Any action required or permitted to be
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taken at a meeting of the shareholders or of a class of shareholders may be
taken without a meeting upon the written consent of shareholders who would have
been entitled to cast the minimum number of votes that would be necessary to
authorize the action at a meeting at which all shareholders entitled to vote
thereon were present and voting. The consents shall be filed with the secretary
of the corporation. The action shall not become effective until after at least
ten days' written notice of the action has been given to each shareholder
entitled to vote thereon who has not consented thereto.
Section 3.16 Minors as Securityholders. The corporation may treat a minor
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who holds shares or obligations of the corporation as having capacity to receive
and to empower others to receive dividends, interest, principal and other
payments or distributions, to vote or express consent or dissent, and to make
elections and exercise rights relating to such shares or obligations unless, in
the case of payments or distributions on shares, the corporate officer
responsible for maintaining the list of shareholders or the transfer agent of
the corporation or, in the case of payments or distributions on obligations, the
treasurer or paying officer or agent has received written notice that the holder
is a minor.
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ARTICLE IV
BOARD OF DIRECTORS
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Section 4.01 Powers; Personal Liability. (a) General Rule. Unless
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otherwise provided by statute, all powers vested by law in the corporation shall
be exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, the board of directors.
(b) Personal Liability of Directors. (1) A director shall not be
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personally liable, as such, for monetary damages for any action taken, or
any failure to take any action, unless:
(i) the director has breached or failed to perform the
duties of his or her office under Section 1721 of the Business
Corporation Law (or any successor provision); and
(ii) the breach or failure to perform constitutes self
dealing, willful misconduct or recklessness.
(2) The provisions of paragraph (1) shall not apply to the
responsibility or liability of a director pursuant to any criminal statute,
or the liability of a director for the payment of taxes pursuant to local,
state or federal law.
(c) Notation of Dissent. A director who is present at a meeting of
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the board of directors, or of a committee of the board, at which action on any
corporate matter is taken shall be presumed to have assented to the action taken
unless his or her dissent is entered in the minutes of the meeting or unless the
director files a written dissent to the action with the secretary of the meeting
before the adjournment thereof or transmits the dissent in writing to the
secretary of the corporation immediately after the adjournment of the meeting.
The right to dissent shall not apply to a director who voted in favor of the
action. Nothing in this section shall bar a director from asserting that minutes
of the meeting incorrectly omitted his or her dissent if, promptly upon receipt
of a copy of such minutes, the director notifies the secretary, in writing, of
the asserted omission or inaccuracy.
Section 4.02 Qualifications and Selection of Directors. (a)
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Qualifications. Each director of the corporation shall be a natural person of
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full age who need not be a resident of the Commonwealth of Pennsylvania or a
shareholder of the corporation.
(b) Power to Select Directors. Except as otherwise provided in these
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bylaws, directors of the corporation shall be elected by the shareholders.
(c) Nomination of Candidates. Upon the demand of any shareholder at
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any meeting of shareholders for the election of directors the chairman of the
meeting shall call for and shall afford a reasonable opportunity for the making
of nominations for the office of director. If the board of directors is
classified with respect to the power to elect directors or with respect to the
terms of directors and if, due to a vacancy or vacancies, or otherwise,
directors of than one class are to be elected, each class of directors to be
elected at the meeting shall be nominated and
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elected separately. Any shareholder may nominate as many persons for the office
of director as there are positions to be filled. If nominations for the office
of director have been called for as provided in this section only candidates who
have been so nominated shall be eligible for election.
(d) Election of Directors. In elections for directors, voting need
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not be by ballot, except upon demand made by a shareholder entitled to vote at
the election and before the voting begins. The candidates receiving the highest
number of votes from each class or group of classes, if any, entitled to elect
directors separately up to the number of directors to be elected by the class or
group of classes shall be elected. If at any meeting of shareholders, directors
of more than one class are to be elected, each class of directors shall be
elected in a separate election.
(e) Cumulative Voting. Unless the articles provide for straight
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voting, in each election of directors every shareholder entitled to vote shall
have the right to multiply the number of votes to which the shareholder may be
entitled by the total number of directors to be elected in the same election by
the holders of the class or classes of shares of which his or her shares are a
part and the shareholder may cast the whole number of his or her votes for one
candidate or may distribute them among too or more candidates. If cumulative
voting is applicable to the election, the chairman of the meeting may, and upon
the request of any shareholder shall, instruct the judges of election that, if a
ballot cast in the election of directors so directs, the judges shall cumulate
the total votes cast by such ballot in such manner as may be required in order
to elect the maximum number of nominees for which such ballot casts votes in the
order of priority specified in such ballot, taking into account the total votes
cast in the election of directors by each other ballot.
Section 4.03 Number and Term of Office. (a) Number. The board of
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directors shall consist of such number of directors, not less than three nor
more than eleven.
(b) Term of Office. Each director shall hold office until his
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successor shall have been elected and qualified or until his or her earlier
death, resignation or removal. A decrease in the number of directors shall not
have the effect of shortening the term of any incumbent director.
(c) Resignation. Any director may resign at any time upon written
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notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as shall be specified in
the notice of resignation.
Section 4.04 Vacancies. (a) General Rule. Vacancies in the board of
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directors, including vacancies resulting from an increase in the number of
directors, may be filled by a majority vote of the remaining members of the
board though less than a quorum, or by a sole remaining director, and each
person so selected shall be a director to serve until the next selection of the
class for which such director has been chosen, and until a successor has been
selected and qualified or until his or her earlier death, resignation or
removal.
(b) Action by Resigned Directors. When one or more directors resign
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from the board effective at a future date, the directors then in office,
including those who have so
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resigned, shall have power by the applicable vote to fill the vacancies, the
vote thereon to take effect when the resignations become effective.
Section 4.05 Removal of Directors. (a) Removal by the Shareholders. The
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entire board of directors, or any class of the board, or any individual director
may be removed from office by vote of the shareholders entitled to vote thereon
without assigning any cause. In case the board or a class of the board or any
one or more directors are so removed, new directors may be elected at the same
meeting.
(b) Removal by the Board. The board of directors may declare vacant
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the office of a director who has been judicially declared of unsound mind or who
has been convicted of an offense punishable by imprisonment for a term of more
than one year or if, within 60 days after notice of his or her selection, the
director does not accept the office either in writing or by attending a meeting
of the board of directors.
Section 4.06 Place of Meetings. Meetings of the board of directors may be
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held at such place within or without the Commonwealth of Pennsylvania as the
board of directors may from time to time appoint or as may be designated in the
notice of the meeting.
Section 4.07 Organization of Meetings. At every meeting of the board of
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directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the president, the vice
presidents in their order of rank and seniority, or a person chosen by a
majority of the directors present, shall act as chairman of the meeting. The
secretary or, in the absence of the secretary, an assistant secretary, or, in
the absence of the secretary and the assistant secretaries, any person appointed
by the chairman of the meeting, shall act as secretary of the meeting.
Section 4.08 Regular Meetings. Regular meetings of the board of directors
----------------
shall be held at such time and place as shall be designated from time to time by
resolution of the board of directors.
Section 4.09 Special Meetings. Special meetings of the board of directors
----------------
shall be held whenever called by the chairman or by two or more of the
directors.
Section 4.10 Quorum of and Action by Directors. (a) General Rule. A
--------------------------------- ------------
majority of the directors in office of the corporation shall be necessary to
constitute a quorum for the transaction of business and the acts of a majority
of the directors present and voting at a meeting at which a quorum is present
shall be the acts of the board of directors.
(b) Action by Written Consent. Any action required or permitted to
-------------------------
be taken at a meeting of the directors may be taken without a meeting if, prior
or subsequent to the action, a consent or consents thereto by all of the
directors in office is filed with the secretary of the corporation.
Section 4.11 Executive and Other Committees. (a) Establishment and Powers.
------------------------------ ------------------------
The board of directors may, by resolution adopted by a majority of the directors
in office, establish one or more committees to consist of one or more directors
of the corporation. Any committee, to the extent provided in the resolution of
the board of directors, shall have and may exercise all
11
of the powers and authority of the board of directors except that a committee
shall not have any power or authority as to the following:
(1) The submission to shareholders of any action requiring
approval of shareholders under the Business corporation Law.
(2) The creation or filling of vacancies in the board of
directors.
(3) The adoption, amendment or repeal of these bylaws.
(4) The amendment or repeal of any resolution of the board that
by its terms is amendable or repealable only by the board.
(5) Action on matters committed by a resolution of the board of
directors to another committee of the board.
(b) Alternate Committee Members. The board may designate one or more
---------------------------
directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee or for the purposes of any
written action by the committee. In the absence or disqualification of a member
and alternate member or members of a committee the member or members thereof
present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another director to act at the
meeting in the place of the absent or disqualified member.
(c) Term. Each committee of the board shall serve at the pleasure of
----
the board.
(d) Committee Procedures. The term "board of directors" or "board,"
--------------------
when used in any provision of these bylaws relating to the organization or
procedures of or the manner of taking action by the board of directors, shall be
construed to include and refer to any executive or other committee of the board.
Section 4.12 Compensation. The board of directors shall have the authority
------------
to fix the compensation of directors for their services as directors and a
director may be a salaried officer of the corporation.
ARTICLE V
OFFICERS
--------
Section 5.01 Officers Generally. (a) Number, Qualifications and
------------------ --------------------------
Designation. The officers of the corporation shall be a chairman of the board, a
- -----------
president, one or more vice presidents, a secretary, a treasurer, and such other
officers as may be elected in accordance with the provisions of Section 5.03.
Officers may but need not be directors or shareholders of the corporation. The
president and secretary shall be natural persons of full age. The treasurer may
be a corporation, but if a natural person shall be of full age. Any number of
offices may be held by the same person.
12
(b) Bonding. The corporation may secure the fidelity of any or all of
-------
its officers by bond or otherwise.
(c) Standard of Care. Except as otherwise provided in the articles,
----------------
an officer shall perform his or her duties as an officer in good faith, in a
manner he or she reasonably believes to be in the best interests of the
corporation and with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under similar
circumstances. A person who so perform his or her duties shall not be liable by
reason of having been an officer of the corporation.
Section 5.02 Election, Term of Office and Resignations. (a) Election and
----------------------------------------- ------------
Term of Office. The officers of the corporation, except those elected by
- --------------
delegated authority pursuant to Section 5.03, shall be elected annually by the
board of directors, and each such officer shall hold office for a term of one
year and until a successor has been selected and qualified or until his or her
earlier death, resignation or removal.
(b) Resignations. Any officer may resign at any time upon written
------------
notice to the corporation. The resignation shall be effective upon receipt
thereof by the corporation or at such subsequent time as may be specified in the
notice of resignation.
Section 5.03 Subordinate Officers, Committees and Agents. The board of
-------------------------------------------
directors may from time to time elect such other officers and appoint such
committees, employees or other agents as the business of the corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such periods have such authority,
and perform such duties as are provided in these bylaws, or as the board of
directors may from time to time determine. The board of directors may delegate
to any officer or committee the power to elect subordinate officers and to
retain or appoint employees or other agents, or committees thereof, and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 5.04 Removal of Officers and Agents. Any officer or agent of the
------------------------------
corporation may be removed by the board of directors with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.05 Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification, or any other cause, may be filled by the
board of directors or by the officer or committee to which the power to fill
such office has been delegated pursuant to Section 5.03, as the case may be, and
if the office is one for which these bylaws prescribe a term, shall be filled
for the unexpired portion of the term.
Section 5.06 Authority. All officers of the corporation, as between
---------
themselves and the corporation, shall have such authority and perform such
duties in the management of the corporation as may be provided by or pursuant to
resolutions or orders of the board of directors or, in the absence of
controlling provisions in the resolutions or orders of the board of directors,
as may be determined by or pursuant to these bylaws.
13
Section 5.07 The Chairman of the Board. The chairman of the board shall be
-------------------------
the chief executive officer of the corporation and, subject to the control of
the board of directors, shall have general charge and control of all its
business and affairs and shall have all powers and shall perform all duties
incident to the office of chairman of the board. The chairman of the board, or,
in the absence of the chairman, the president, shall preside at all meetings of
the shareholders and (if a director) of the board of directors.
Section 5.08 The President. The president shall be the chief operating
-------------
officer of the corporation and shall have general supervision over the
operations of the corporation, subject however, to the control of the board of
directors and the chairman of the board. In the absence of the chairman of the
board, the president shall preside at all meetings of the shareholders and (if a
director) of the board of directors, and shall perform such other duties as from
time to time may be assigned by the board of directors or the chairman of the
board.
Section 5.09 The Vice Presidents. The vice presidents shall perform the
-------------------
duties of the President in the absence of the president and such other duties as
may from time to time be assigned to them by the board of directors or the
chairman of the board.
Section 5.10 The Secretary. The secretary or an assistant secretary shall
-------------
attend all meetings of the shareholders and of the board of directors and all
committees thereof and shall record all the votes of the shareholders and of the
directors and the minutes of the meetings of the shareholders and of the board
of directors and of committees of the board in a book or books to be kept for
that purpose; shall see that notices are given and records and reports properly
kept and filed by the corporation as required by law; shall be the custodian of
the seal of the corporation and see that it is affixed to all documents to be
executed on behalf of the corporation under its seal; and, in general, shall
perform all duties incident to the office of secretary, and such other duties as
may from time to time be assigned by the board of directors or the chairman of
the board.
Section 5.11 The Treasurer. The treasurer or an assistant treasurer shall
-------------
have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; shall, whenever so required by the board of directors, render an
account showing all transactions as treasurer, and the financial condition of
the corporation; and, in general, shall discharge such other duties as may from
time to time be assigned by the board of directors or the chairman of the board.
Section 5.12 Salaries. The salaries of the officers elected by the board
--------
of directors shall be fixed from time to time by the board of directors or by
such officer as may be designated by resolution of the board. The salaries or
other compensation of any other officers, employees and other agents shall be
fixed from time to time by the officer or committee to which the power to elect
such officers or to retain or appoint such employees or other agents has been
delegated pursuant to Section 5.03. No officer shall be prevented from receiving
such salary or other compensation by reason of the fact that the officer is also
a director of the corporation.
14
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
-------------------------------------
Section 6.01 Share Certificates. (a) Form of Certificates. Certificates
------------------ --------------------
for shares of the corporation shall be in such form as approved by the board of
directors, and shall state that the corporation is incorporated under the laws
of the Commonwealth of Pennsylvania, the name of the person to whom issued, and
the number and class of shares and the designation of the series (if any) that
the certificate represents. If the corporation is authorized to issue shares of
more than one class or series, certificates for shares of the corporation shall
set forth upon the face or back of the certificate (or shall state on the face
or back of the certificate that the corporation will furnish to any shareholder
upon request and without charge), a full or summary statement of the
designations, voting rights, preferences, limitations and special rights of the
shares of each class or series authorized to be issued so far as they have been
fixed and determined and the authority of the board of directors to fix and
determine the designations, voting rights, preferences, limitations and special
rights of the classes and series of shares of the corporation.
(b) Share Register. The share register or transfer books and blank
--------------
share certificates shall be kept by the secretary or by any transfer agent or
registrar designated by the board of directors for that purpose.
Section 6.02 Issuance. The share certificates of the corporation shall be
--------
numbered and registered in the share register or transfer books of the
corporation as they are issued. They shall be executed in such manner as the
board of directors shall determine.
Section 6.03 Transfer. Transfers of shares shall be made an the share
--------
register or transfer books of the corporation upon surrender of the certificate
therefor, endorsed by the person named in the certificate or by an attorney
lawfully constituted in writing. No transfer shall be made inconsistent with the
provisions of the Uniform Commercial Code, 13 Pa.C.S. (S)(S) 8101 et seq., and
-- ---
its amendments and supplements.
Section 6.04 Record Holder of Shares. The corporation shall be entitled to
-----------------------
treat the person in whose name any share or shares of the corporation stand on
the books of the corporation as the absolute owner thereof, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
or shares on the part of any other person.
Section 6.05 Lost, Destroyed or Mutilated Certificates. The holder of any
-----------------------------------------
shares of the corporation shall immediately notify the corporation of any loss,
destruction or mutilation of the certificate therefor, and the board of
directors may, in its discretion, cause a new certificate or certificates to be
issued to such holder, in case of mutilation of the certificate, upon the
surrender of the mutilated certificate or, in case of loss or destruction of the
certificate, upon satisfactory proof of such loss or destruction and, if the
board of directors shall so determine, the deposit of a bond in such form and in
such sum, and with such surety or sureties, as it may direct.
ARTICLE VII
15
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER AUTHORIZED REPRESENTATIVES
---------------------------------------------------------------------------
Section 7.01 Scope of Indemnification. (a) General Rule. The corporation
------------------------ ------------
shall indemnify an indemnified representative against any liability incurred in
connection with any proceeding in which the indemnified representative may be
involved as a party or otherwise by reason of the fact that such person is or
was serving in an indemnified capacity, including, without limitation,
liabilities resulting from any actual or alleged breach or neglect of duty,
error, misstatement or misleading statement, negligence, gross negligence or act
giving rise to strict or products liability, except:
(1) where such indemnification is expressly prohibited by
applicable law;
(2) where the conduct of the indemnified representative has been
finally determined pursuant to Section 7.06 or otherwise:
(i) to constitute willful misconduct or recklessness within
the meaning of 15 Pa.C.S. (S)(S) 513(b) and 1746(b) and 42 Pa.C.S. (S)
8365(b) or any superseding provision of law sufficient in the
circumstances to bar indemnification against liabilities arising from
the conduct; or
(ii) to be based upon or attributable to the receipt by the
indemnified representative from the corporation of a personal benefit
to which the indemnified representative is not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication pursuant to Section 7.06 to be otherwise
unlawful.
(b) Partial Payment. If an indemnified representative is entitled to
---------------
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the corporation shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) Presumption. The termination of a proceeding by judgment, order,
-----------
settlement or conviction or upon a plea of nolo contendere or its equivalent
---- ----------
shall not of itself create a presumption that the indemnified representative is
not entitled to indemnification.
(d) Definitions. For purposes of this Article:
-----------
(1) "indemnified capacity" means any and all past, present and
future service by an indemnified representative in one or more capacities
as a director, officer, employee or agent of the corporation, or, at the
request of the corporation, as a director, officer, employee, agent,
fiduciary or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other entity or enterprise;
(2) "indemnified representative" means any and all directors and
officers of the corporation and any other person designated as an
indemnified representative by the board of directors of the corporation
(which may, but need not, include any person
16
serving at the request of the corporation, as a director, officer,
employee, agent, fiduciary or trustee of another corporation, partnership,
joint venture, trust, employee benefit plan or other entity or enterprise);
(3) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense of any nature
(including, without limitation, attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or completed
action, suit, appeal or other proceeding of any nature, whether civil,
criminal, administrative or investigative, whether formal or informal, and
whether brought by or in the right of the corporation, a class of its
security holders or otherwise.
Section 7.02 Proceedings Initiated by Indemnified Representatives.
----------------------------------------------------
Notwithstanding any other provision of this Article, the corporation shall not
indemnify under this Article an indemnified representative for any liability
incurred in a proceeding initiated (which shall not be deemed to include counter
claims or affirmative defenses) or participated in as an intervenor or amicus
------
curiae by the person seeking indemnification unless such initiation of or
- ------
participation in the proceeding is authorized, either before or after its
commencement, by the affirmative vote of a majority of the directors in office.
This section does not apply to reimbursement of expenses incurred in
successfully prosecuting or defending an arbitration under Section 7.06 or
otherwise successfully prosecuting or defending the rights of an indemnified
representative granted by or pursuant to this Article.
Section 7.03 Advancing Expenses. The corporation shall pay the expenses
------------------
(including attorneys' fees and disbursements) incurred in good faith by an
indemnified representative in advance of the final disposition of a proceeding
described in Section 7.01 or the initiation of or participation in which is
authorized pursuant to Section 7.02 upon receipt of an undertaking by or on
behalf of the indemnified representative to repay the amount if it is ultimately
determined pursuant to Section 7.06 that such person is not entitled to be
indemnified by the corporation pursuant to this Article. The financial ability
of an indemnified representative to repay an advance shall not be a prerequisite
to the making of such advance.
Section 7.04 Securing of Indemnification Obligations. To further effect,
---------------------------------------
satisfy or secure the indemnification obligations provided herein or otherwise,
the corporation may maintain insurance, obtain a letter of credit, act as self-
insurer, create a reserve, trust, escrow, cash collateral or other fund or
account, enter into indemnification agreements, pledge or grant a security
interest in any assets or properties of the corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the board of directors shall deem
appropriate. Absent fraud, the determination of the board of directors with
respect to such amounts, costs, terms and conditions shall be conclusive against
all security holders, officers and directors and shall not be subject to
voidability.
17
Section 7.05 Payment of Indemnification. An indemnified representative
--------------------------
shall be entitled to indemnification within 30 days after a written request for
indemnification has been delivered to the secretary of the corporation.
Section 7.06 Arbitration. (a) General Rule. Any dispute related to the
----------- ------------
right to indemnification, contribution or advancement of expenses as provided
under this Article, except with respect to indemnification for liabilities
arising under the Securities Act of 1933 that the corporation has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in the
metropolitan area in which the principal executive offices of the corporation
are located at the time, in accordance with the commercial arbitration rules
then in effect of the American Arbitration Association, before a panel of three
arbitrators, one of whom shall be selected by the corporation, the second of
whom shall be selected by the indemnified representative and the third of whom
shall be selected by the other two arbitrators. In the absence of the American
Arbitration Association, or if for any reason arbitration under the arbitration
rules of the American Arbitration Association cannot be initiated, and if one of
the parties fails or refuses to select an arbitrator or the arbitrators selected
by the corporation and the indemnified representative cannot agree on the
selection of the third arbitrator within 30 days after such time as the
corporation and the indemnified representative have each been notified of the
selection of the other's arbitrator, the necessary arbitrator or arbitrators
shall be selected by the presiding judge of the court of general jurisdiction in
such metropolitan area.
(b) Burden of Proof. The party or parties challenging the right of an
---------------
indemnified representative to the benefits of this Article shall have the burden
of proof.
(c) Expenses. The corporation shall reimburse an indemnified
--------
representative for the expenses (including attorneys' fees and disbursements)
incurred in successfully prosecuting or defending such arbitration.
(d) Effect. Any award entered by the arbitrators shall be final,
------
binding and nonappealable and judgment may be entered thereon by any party in
accordance with applicable law in any court of competent. jurisdiction, except
that the corporation shall be entitled to interpose as a defense in any such
judicial enforcement proceeding any prior final judicial determination adverse
to the indemnified representative under Section 7.01(a)(2) in a proceeding not
directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
Section 7.07 Contribution. If the indemnification provided for in this
------------
Article or otherwise is unavailable for any reason in respect of any liability
or portion thereof, the corporation shall contribute to the liabilities to which
the indemnified representative may be subject in such proportion as is
appropriate to reflect the intent of this Article or otherwise.
Section 7.08 Mandatory Indemnification of Directors, Officers, etc. To the
-----------------------------------------------------
extent that an authorized representative of the corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in Section 1741 or 1742 of the Business Corporation Law or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees and disbursements) actually and reasonably
incurred by such person in connection therewith.
18
Section 7.09 Contract Rights; Amendment or Reveal. All rights under this
------------------------------------
Article shall be deemed a contract between the corporation and the indemnified
representative pursuant to which the corporation and each indemnified
representative intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not affect any rights or obligations
then existing.
Section 7.10 Scope of Article. The rights granted by this Article shall
----------------
not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled under
any statute, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an indemnified capacity and as to action in any
other capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a person
who has ceased to be an indemnified representative in respect of matters arising
prior to such time, and shall inure to the benefit of the heirs, executors,
administrators and personal representatives of such a person.
Section 7.11 Reliance on Provisions. Each person who shall act as an
----------------------
indemnified representative of the corporation shall be deemed to be doing so in
reliance upon the rights of indemnification, contribution and advancement of
expenses provided by this Article.
Section 7.12 Interpretation. The provisions of this Article are intended
--------------
to constitute bylaws authorized by 15 Pa.C.S. (S)(S) 513 and 1746 and 42 Pa.C.S.
(S) 8365.
ARTICLE VIII
MISCELLANEOUS
-------------
Section 8.01 Corporate Seal. The corporation shall have a corporate seal
--------------
in the form of a circle containing the name of the corporation, the year of
incorporation and such other details as may be approved by the board of
directors. The affixation of the corporate seal shall not be necessary to the
valid execution, assignment or endorsement by the corporation of any instrument
or other document.
Section 8.02 Checks. All checks, notes, bills of exchange or other similar
------
orders in writing shall be signed by such one or more officers or employees as
the board of directors or any person authorized by resolution of the board of
directors may from time to time designate.
Section 8.03 Contracts. Except as otherwise provided in the Business
---------
Corporation Law in the case of transactions that require action by the
shareholders, the board of directors may authorize any officer or agent to enter
into any contract or to execute or deliver any instrument on behalf of the
corporation, and such authority may be general or confined to specific
instances.
Section 8.04 Interested Directors or Officers; Quorum. (a) General Rule.
---------------------------------------- ------------
A contract or transaction between the corporation and one or more of its
directors or officers or between the corporation and another corporation,
partnership, joint venture, trust or other enterprise in which one or more of
its directors or officers are directors or officers or have a financial or other
interest, shall not be void or voidable solely for that reason, or solely
because the director or
19
officer is present at or participates in the meeting of the board of directors
that authorizes the contract or transaction, or solely because his, her or their
votes are counted for that purpose, if:
(1) the material facts as to the relationship or interest and as
to the contract or transaction are disclosed or are known to the board of
directors and the board authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors even though
the disinterested directors are less than a quorum:
(2) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract or transaction is
specifically approved in good faith by vote of those shareholders; or
(3) the contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified by the board of
directors or the shareholders.
(b) Quorum. Common or interested directors may be counted in
------
determining the presence of a quorum at a meeting of the board which authorizes
a contract or transaction specified in subsection (a).
Section 8.05 Deposits. All funds of the corporation shall be deposited
--------
from time to time to the credit of the corporation in such banks, trust
companies or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
Section 8.06 Corporate Records. (a) Required Records. The corporation
----------------- -----------------
shall keep complete and accurate books and records of account, minutes of the
proceedings of the incorporators, shareholders and directors and a share
register giving the names and addresses of all shareholders and the number and
class of shares held by each. The share register shall be kept at either the
registered office of the corporation in the Commonwealth of Pennsylvania or at
its principal place of business wherever situated or at the office of its
registrar or transfer agent. Any books, minutes or other records may be in
written form or any other form capable of being converted into written form
within a reasonable time.
(b) Right of Inspection. Every shareholder shall, upon written
-------------------
verified demand stating the purpose thereof, have a right to examine, in person
or by agent or attorney, during the usual hours for business for any proper
purpose, the share register, books and records of account, and records of the
proceedings of the incorporators, shareholders and directors to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
the interest of the person as a shareholder. In every instance where an attorney
or other agent is the person who seeks the right of inspection, the demand shall
be accompanied by a verified power of attorney or other writing that authorizes
the attorney or other agent to so act on behalf of the shareholder. The demand
shall be directed to the corporation at its registered office in the
Commonwealth of Pennsylvania or at its principal place of business wherever
situated.
Section 8.07 Financial Reports. Unless otherwise agreed between the
-----------------
corporation and a shareholder, the corporation shall furnish to its shareholders
annual financial statements,
20
including at least a balance sheet as of the end of each fiscal year and a
statement of income and expenses for the fiscal year. The financial statements
shall be prepared an the basis of generally accepted accounting principles, if
the corporation prepares financial statements for the fiscal year on that basis
for any purposes and may be consolidated statements of the corporation and one
or more of its subsidiaries. The financial statements shall be mailed by the
corporation to each of its shareholders entitled thereto within 120 days after
the close of each fiscal year and, after the mailing and upon written request,
shall be mailed by the corporation to any shareholder or beneficial owner
entitled thereto to whom a copy of the most recent annual financial statements
has not previously been mailed. Statements that are audited or reviewed by a
public accountant shall be accompanied by the report of the accountant; in other
cases, each copy shall be accompanied by a statement of the person in charge of
the financial records of the corporation:
(1) Stating his or her reasonable belief as to whether or not the
financial statements were prepared in accordance with generally accepted
accounting principles and, if not, describing the basis of presentation.
(2) Describing any material respects in which the financial
statements were not prepared on a basis consistent with those prepared for
the previous year.
Section 8.08 Amendment of Bylaws. These bylaws may be amended or repealed,
-------------------
or new bylaws may be adopted, either (i) by vote of the shareholders at any duly
organized annual or special meeting of shareholders, or (ii) with respect to
those matters that are not by statute committed expressly to the shareholders
and regardless of whether the shareholders have previously adopted or approved
the bylaw being amended or repealed, by vote of a majority of the board of
directors of the corporation in office at any regular or special meeting of
directors. Any change in these bylaws shall take effect when adopted unless
otherwise provided in the resolution effecting the change. See Section 2.03 (b)
(relating to notice of action by shareholders on bylaws).
21